Blessings on Bench Memos readers for keeping this non-lawyer straight. (And now Kathryn can expect the predictable e-mails from people newly or repeatedly outraged that a non-lawyer is even writing in this space.) The other day I wrote, apropos of the Clarence Thomas-Anita Hill imbroglio of 1991:
I understand (and I know I will be corrected if I am wrong about this) that in sexual harassment cases, the testimony of persons contemporaneously told by a plaintiff that she was being harassed is sometimes admitted, on the theory that the perpetrators are so good at concealing their actions that eyewitnesses are often lacking and we must look elsewhere, trusting that no woman would make up stories to her friends about such terrible experiences. This is a hearsay minefield in which fact-finders must tread very carefully.
Sure enough, I got the correction I needed. One correspondent with apparent expertise (and the citations to back it up) assures me that Anita Hill’s witnesses before the Senate committee, testifying to what she told them either during or after her employment with Clarence Thomas, would not normally have been permitted to testify in a federal lawsuit over sexual harassment. He adds: “A minority of courts might allow them to testify about what she said to rebut a claim by Thomas that her allegations were recent fabrications; but most courts wouldn’t let them in.” Even where such testimony would be permitted, and where other loosening of normal evidentiary strictures is made to facilitate sexual harassment claims, my correspondent says, “the underlying facts have to be proven by admissible testimony by those with firsthand knowledge of them.” The Democrats of 1991, and their latter-day defenders such as Ruth Marcus, prefer the secondhand testimony to the firsthand. This is a useful reminder that in the name of defending the precious edifice of American law and constitutionalism against the threat of Clarence Thomas on the Supreme Court, liberals were willing to bulldoze evidentiary standards used in courts of law that were already pretty friendly to harassment claims.